No excuse to drink and drive

New guidelines drink-driving handed down yesterday by the NSW Court of Criminal Appeal.

No excuse to drink and drive

08 September 2004Natasha Wallace

Heavily intoxicated drivers will no longer be able to use a trip home from a funeral or their good reputation to get a lenient penalty after new guidelines were handed down yesterday by the NSW Court of Criminal Appeal.

The Attorney-General, Bob Debus, who requested the judgement, said magistrates had too often taken into account the subjective circumstances of the offender.

They had been "unduly lenient" and "more often than not" imposed less than the prescribed license disqualification periods, the judgement said.

Under the guidelines -- the first to give magistrates a clear basis upon which to impose sentences for high-range drink-drivers whose blood alcohol concentration is above 0.15 grams per 100 millilitres -- disqualification periods will only be reduced where employment or sickness is a factor, or in the "absence of any viable alternative transport".

Escaping a recorded conviction was also "manifestly too frequent", Mr Debus said, citing a case in which a man with a blood alcohol reading of 0.19 grams did not get a record because he was respected in the community. This will now be "rarely appropriate".

And a conviction cannot be avoided because the offender has attended, or will attend, a driver's education or awareness course.

High-range drink-drivers whose moral culpability was increased by any of several factors -- including having passengers, colliding with another vehicle or showing off -- should usually receive a prison sentence, according to the ruling.

Drink-driving was not becoming more prevalent, but was still a common offence, accounting for 19.6 percent of sentences handed down in local courts.

In 2003, there were 4894 high-range drink-drivers charged, out of 3.1 million drivers breath-tested -- about 16 people out of every 1000. About 23 percent of people convicted of high-range drink-driving had at least one such prior conviction.

While maximum penalties were doubled in 1998 to $1100 for a first offence and a standard disqualification period of six months (or three months at the magistrate's discretion) introduced, sentences had nevertheless become more lenient, Mr Debus said.

The rate of imprisoning offenders fell from 2.9 percent in the four years before 1998 to 2.4 percent four years after the amendments.

The rate of dismissing the charge without conviction under section 10 of the Sentencing Act increased from 5.9 percent to 9.7 percent over the same period.

A four-year study to March 2003 showed that of those convicted of drink-driving -- more than 15,000 people -- 61 percent were fined only, 11 percent had no conviction recorded and 2 percent were jailed full-time.

Mr Debus said the guidelines would lead to tougher sentences. "Courts will be expected to at the very least imprison a high-range PCA driver on their second offence if moral culpability is involved and there are a number of factors of aggravation present."

But Harold Scruby, chairman of the Pedestrian Council of Australia, said the guidelines were inadequate and would not act as a deterrent.

"It ignores the lower and mid-range offenders, they're still getting off and ... high-range drink drivers on their second offence can still be offered community service," Mr Scruby said.

Court facts

1. An offender with a reading of 0.19 was found guilty but did not have a conviction recorded because of his good standing in the community.2. A magistrate took into account that an offender consumed alcohol after being with her terminally ill brother.3. In Newcastle Local Court more than 45 percent of high-range PCA cases were dealt with under section 10 of the Sentencing Act (proven guilty but no conviction recorded.) This compares with an average rate of 11 percent in NSW local courts.